BREXIT: UK government seeking time limited power to 'correct' post-Brexit statute book

Out-Law News | 30 Mar 2017 | 4:53 pm | 2 min. read

The UK government is seeking a time-limited power to "correct the statute book" by way of secondary legislation ahead of the country's departure from the European Union.

It has published a 'white paper' setting out a three-point plan for converting EU law into domestic law at the point that Brexit takes effect. This will also include the repeal of the 1972 European Communities Act (ECA) and giving legal status to historic decisions of the European courts.

"The main aim of today's white paper - and the 'great repeal' bill to follow it - is to provide reassurance to business that our break-up from the EU will not result in legislative chaos," said parliamentary agent and government affairs expert Richard Bull of Pinsent Masons, the law firm behind "The body of EU law currently in force will largely apply as now."

"Much media attention has been paid to the proposal to enable so-called 'Henry VIII powers' - a form of secondary legislation - to be used to adapt the statute book to a post-Brexit world. The reference to Henry VIII suggests something akin to the US presidential executive order. Whilst the powers to re-write the statute book are considerable, their exercise will be subject to parliamentary scrutiny and control. Henry VIII is unlikely to have approved," he said.

The government is proposing a single piece of legislation, which it has dubbed the 'great repeal bill', which will repeal the ECA and convert all EU laws applicable to the UK into domestic law at the point of Brexit and not before. This bill will not make any changes to policy or establish new legal frameworks in the UK, beyond "those which are necessary to ensure the law functions properly", according to the paper.

The bill would also give the same status in the UK courts to historic decisions of the Court of Justice of the EU (CJEU) as to decisions of the UK's highest domestic court, the Supreme Court. This would mean that CJEU decisions could not be overruled by the lower courts in England and Wales, Scotland and Northern Ireland. The government expects that the Supreme Court will take a "sparing approach" to departing from CJEU case law, in the same way as is the case for its own decisions.

The government will introduce the legislation to parliament in the next parliamentary session, and its passage will run alongside the UK's negotiations with the EU and any other legislation associated with Brexit. After the bill becomes law, the government will then begin producing secondary legislation to "correct laws that will not operate appropriately once we have left the EU". The bill itself will take effect on the day the UK leaves the EU, which is expected at the end of March 2019.

Secondary, rather than primary, legislation will be used to 'correct' the statute book due to the number of changes that will be needed and the speed with which these must be implemented, according to the paper. The government has estimated that between 800 and 1,000 statutory instruments will be needed to make all the necessary corrections. The government intends to strike "the right balance" between the need for parliamentary scrutiny of these regulations and the need for speed, and will ensure that the power to make secondary legislation is "appropriately time-limited to enact the required changes".

No decisions currently taken by the devolved administrations in Scotland, Wales and Northern Ireland will be taken away from them during the repeal process, and ministers in each of the administrations will be given the same powers to 'correct' devolved laws, according to the paper. The paper also explicitly confirms that any workers' rights, environmental protections and consumer rights provided for by EU law will be enshrined in UK law as part of the repeal process, with any future changes subject to the usual parliamentary scrutiny.

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